Inrtroduction To Dispute Resolution

Question 1

What is civil litigation?

Answer 1

Any litigation other than criminal

Question 2

What are the key stages of a civil claim?

Answer 2

1. Pre-action conduct and considerations
2. Statements of case
3. Case management
4. Evidence
5. Trial
6. Post-Trial

Question 3

What are the civil procedure rules?

Answer 3

• govern the procedure of litigation
• divided into parts
• each part contains a number of rules
• most parts are supplemented by practice directions
• both rules and practice directions are binding - read them together

Question 4

What is the overriding objective (CPR 1.1)?

Answer 4

1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable—
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate—
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

Question 5

How does the overriding objective ensure that vulnerable parties can participate fully? (1A PD)

Answer 5

By ensuring there are specific provisions in place addressing those vulnerabilities

Question 6

How does the CPR determine someone vulnerable?

Answer 6

• witness/party being young
• language and communication difficulties
• suffering from mental or physical disability or impairment
• Cultural circumstances; or
• range of other factors

Question 7

What should the courts do in following the overriding objective for vulnerable individuals?

Answer 7

Take all proportionate measures to:
- identify the vulnerability of parties/witnesses
- give directions or make appropriate provisions to facilitate participation. Eg.:
- giving a vulnerable individual extra time to comply
- putting in place support for the hearing, or
- giving directions to advocates of how they should conduct themselves

Question 8

What part of the CPR deals with costs?

Answer 8

CPR 44

Question 9

What costs might be incurred through the pursuit of litigation?

Answer 9

• Solicitors fees
• court fees
• counsel fees
• expert’s fees
• other costs

Question 10

What are solicitors fees?

Answer 10

The work that is done by the solicitor for the case

Question 11

What’s are court fees?

Answer 11

Those fees which are attached to pursuing a claim, such as:
- issuing the claim
- making an application; and
- a ‘hearing fee’ notionally in relation to the costs of the trial.

Question 12

What are counsel fees?

Answer 12

Fees which are incurred from counsel providing specialist advice or representation in court. Counsel can charge on a fixed costs basis or hourly

Question 13

What are experts fees?

Answer 13

Where an expert is used in the case to provide advice on the matter, such as medial experts use in a personal injury claim

Question 14

What are other costs?

Answer 14

• travel costs
• photocopying documents
• land registry fees
• other

Question 15

What power does a court have when it comes to costs (CPR 44.2(1))?

Answer 15

They have the broad discretion to determine:
(A) whether one party should pay the other’s costs
(B) if so, how much should be paid

Question 16

What is the general rule to costs (CPR 44.2(2))?

Answer 16

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party

Question 17

What discretion does the court have when it comes to costs?

Answer 17

The court can make an order which is different to the general rule. It can take into account a range of factors, including the conduct of the parties and whether a party has succeeded on all of its case if only part

Question 18

What is the limit when it comes to costs?

Answer 18

It will only allow a reasonable and proportionate sum to be recovered

Question 19

What does a party need to consider, costs wise, when it is going to pursue litigation?

Answer 19

• how it will fund its own costs
• how it will pay the opponents costs in the event the court orders to do so
• how it will react to only recovering a proportion of their own costs

Question 20

What is the overview of how the court approaches inter-partes costs?

Answer 20

• identify the successful party
• the starting point is that the successful party will receive its costs from the unsuccessful party
• is there a reason to make a different order considering the required factors and conduct from the parties
• where the party is to recover their costs, only award an amount which is proportionate and reasonable.

Question 21

Which part of the CPR deal with where to start proceedings?

Answer 21

CPR 7.1

Question 22

Which practice directions deals with where to start proceedings?

Answer 22

PD 7A paras 1, 2.1-2.5

Question 23

Overriding objective - encouraging the co-operation between parties. CPR 1.4.4 commentary

Answer 23

Active case management from the court encouraging parties to co-operate with each other.
It discourages any unreasonable conduct between the parties at both before or after proceedings have commenced
When it comes to deciding costs,the court may take factors surrounding the conduct of the parties into consideration
Co-operation does not require a party to remind their opponent to comply with procedural time-limits

Question 24

Overriding objective - helping the parties to settle. CPR 1.4.9 commentary

Answer 24

Active case management includes helping the parties to settle the whole or part of the case.
All of devices are intended to divert cases away from the court system to ensure that those cases which do go through the system are dealt with as rapidly as possible
Court may require a stay in proceedings for parties to deal with their issues away from he court system. There is a burden therefore on the party opposing to the stay to persuade the court of a good reason to deal with the claim in the court system.

Question 25

Overriding Objective - Encouraging use of ADR. CPR 1.4.11. Commentary

Answer 25

The overriding objective can be furthered by the court compelling a the use of Early Neutral Evaluation. CPR 3.1(2)(m)